PROCEEDINGS

	IN THE CASE OF:  

	BOARD DATE:           19 July 2001                   
	DOCKET NUMBER:   AR2001058580

	I certify that hereinafter is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in the case of the above-named individual.  

	Mr. Carl W. S. Chun		Director	
	Mrs. Nancy Amos		Analyst	

  The following members, a quorum, were present:

	Mr. Mark D. Manning		Chairperson	
	Mr. Lester Echols		Member	
	Ms. Gail J. Wire		Member	

	The applicant and counsel if any, did not appear before the Board.

	The Board considered the following evidence:

	Exhibit A - Application for correction of military 
                records
	Exhibit B - Military Personnel Records (including
	            advisory opinion, if any)

FINDINGS:

1.  The applicant has exhausted or the Board has waived the requirement for exhaustion of all administrative remedies afforded by existing law or regulations.

2.  The applicant requests that the records of her deceased former spouse, a former service member (FSM), be corrected to show he changed his Survivor Benefit Plan (SBP) coverage to former spouse coverage.

3.  The applicant states that the FSM was not aware that she would lose her eligibility upon divorce and that is why he did not notify the Army of the divorce but continued to pay SBP premiums until he died.  Neither of them remarried and the FSM continued to support her medical needs until his death.

4.  The FSM's military records show that after having had prior service, he reenlisted in the Regular Army in 1956.  He and the applicant married on 17 June 1956.  He retired on 1 August 1978.  At that time he enrolled in the SBP for spouse coverage, reduced base amount ($300.00).

5.  On 27 June 1980, the FSM and the applicant divorced.  On 27 June 1999, the FSM died.  The Defense Finance and Accounting Service has verified that the FSM continued to pay SBP premiums until he died and that no one is currently receiving the SBP annuity.

6.  Public Law 92-245, the SBP, enacted 21 September 1972, provided that military members on active duty could elect to have their retired pay reduced to provide for an annuity after death to surviving dependents.

7.  Public Law 94-496 enacted 14 October 1976 but effective 1 October 1976, provided that spouse costs would be suspended if the marriage ends in death or divorce. 

8.  Public Law 97-252, the Uniformed Services Former Spouses Protection Act (USFSPA), dated 8 September 1982, established SBP for former military spouses for retiring members. 

9.  Public Law 98-94, dated 24 September 1983, established former spouse coverage for retired members (Reservists, too).

10.  Public Law 99-145, dated 8 November 1985, permitted retirees to elect SBP coverage for a former spouse under spouse coverage provisions vice insurable interest provisions.

11.  Public Law 99-661, dated 14 November 1986, permitted divorce courts to order SBP coverage (without the member’s agreement) in those cases where the 

retiree had elected spouse coverage at retirement or was still on active duty and had not yet made an SBP election.

CONCLUSIONS:

1.  There is no Government error in this case.  At the time the FSM and the applicant divorced in 1980, state courts were not permitted to order SBP coverage.  Former spouse coverage for retired members was not established until September 1983.  Former spouse coverage at the spouse rate (instead of the higher natural person with insurable interest rate) was not established until November 1985. 

2.  However, the FSM did not remarry and he continued to pay SBP premiums until he died.  The Board concludes that as a matter of equity the applicant should be granted the SBP annuity.  It was Congress’s intent in establishing the SBP to provide for those spouses who supported the military member for the majority of his or her military career.  The applicant was married to the FSM for the majority of his military career.  

3.  The FSM overpaid SBP premiums from the date of divorce, when his costs should have been suspended, until 24 September 1983, when former spouse coverage for retired members was established.  He underpaid SBP costs from  24 September 1983 until 8 November 1985, when former spouse costs were paid under the spouse coverage provisions.  It would be appropriate to require that any due SBP premiums be paid before starting the SBP annuity.

4.  In view of the foregoing, the FSM’s records should be corrected as recommended below.

RECOMMENDATION:

1.  That all of the Department of the Army records related to this case be corrected by showing that the FSM’s SBP coverage was suspended on 27 June 1980, the date of his divorce; that he requested, in writing, that his SBP coverage be changed to former spouse coverage, reduced base amount ($300.00) on     24 September 1983; and that he requested that his SBP coverage be changed to former spouse coverage at the spouse cost provisions on 8 November 1985.  

2.  That the applicant be advised that the Defense Finance and Accounting Service will be instructed to collect any SBP costs due. 

3.  That the applicant be paid an annuity based upon the FSM’s changed SBP election retroactive to the date of his death.

BOARD VOTE:  

__mdm___  __le____  __gjw___  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

			Mark D. Manning
		______________________
		        CHAIRPERSON

INDEX

CASE ID	AR2000048936	
SUFFIX		
RECON		
DATE BOARDED	20010719	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	(GRANT)	
REVIEW AUTHORITY		
ISSUES         1.	137.04	
2.		
3.		
4.		
5.		
6.